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[2010] ZALCCT 36
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Louw v Eden District Municipality (C1038/2010) [2010] ZALCCT 36 (6 December 2010)
Delivered
06122010
Reportable
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: C 1038/2010
In
the matter between:
GODFREY
LOUW
APPLICANT
and
EDEN
DISTRICT
MUNICIPALITY RESPONDENT
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application brought in terms of
section 158(1)
of
the
Labour Relations Act 66 of 1995
. The applicant seeks an order
inter alia
in the following terms:
2
Declaring whether the South African Local Government Bargaining
Council or the
Commission for Conciliation, Mediation and Arbitration
has jurisdiction in respect of the disputes between the Applicant, an
employee
employed in terms of section 57 of the Local Government:
Municipal Systems Act, and the Respondent about:
(a)
an alleged unfair labour practice;
(b)
an alleged unfair dismissal; and
(c)
the interpretation or application of the Disciplinary
Procedure Collective Agreement of the South African Local Government
Bargaining
Council.
The
facts
[2]
On 1 July 1998, the applicant was employed as a municipal manager of
the respondent in terms of s 57 of the Local Government:
Municipal
Systems Act, Act 32 of 2000 (“the Systems Act”). He has
referred three disputes to the bargaining council.
These disputes
respectively relate to the applicant’s suspension, his
dismissal and the interpretation of a collective agreement
regulating
disciplinary procedures. In relation to the first dispute, the
respondent challenged the jurisdiction of the bargaining
council to
arbitrate the dispute, and contended that the dispute ought to have
been referred to the CCMA. On 16 November 2010,
the arbitrator
dismissed the point
in limine
, and ruled that the matter was
properly before the bargaining council. In relation to the second
dispute, the bargaining council
has issued a certificate of outcome,
but the applicant has not yet requested arbitration, pending
the outcome of this application.
In relation to the third dispute, on
16 November 2010, the bargaining council made a ruling in which it
recorded that the parties
had by agreement decided that ‘the
only option’ to establish the correct forum is to refer the
matter to this court
on an urgent basis ‘
for a declaratory
from the Honourable Court as it is argued that there are conflicting
rulings and awards regarding the correct
forum to deal with section
57 employees and that there is a necessity to expedite the process.
This matter is of national interest
and should accordingly be decided
by the Labour Court to create clarity and jurisprudential precedent
across the republic of RSA
’. On that basis, the arbitrator
made a ruling to the effect that by mutual agreement, the matter be
referred to this court
on an urgent basis for a declaratory order.
The
relevant legal principles
[3]
I will assume for present purposes that the application is urgent. In
effect, what the applicant and the respondent seek is
a directive
from this court as to whether the dispute between them should be
determined by the bargaining council or the CCMA.
There are
conflicting rulings on this point; the applicant has referred to a
number of rulings made both by the CCMA and the bargaining
council in
this regard. But it does not follow, as the arbitration ruling
suggests, that there is any basis on which this court
can grant a
declaratory order, or, for that matter, that the application should
be treated as urgent. While this court is empowered
to grant
declaratory orders (see s 158(1) (a) (iv)), it may only do so in
respect of matters that fall under its jurisdiction.
Disputes
about suspension, dismissal for misconduct and the interpretation of
collective agreements do not fall within this
court’s
jurisdiction – these are matters that must in the first
instance be determined by the CCMA or a bargaining
council, as the
case may be. The ruling that is the genesis of this application was
made in respect of a referral to arbitration
of a dispute about the
interpretation of a collective agreement concluded by the bargaining
council to regulate disciplinary procedures
– this is something
over which this court manifestly has no jurisdiction.
[4]
If a jurisdictional challenge is mounted at an arbitration hearing
(or a conciliation meeting) the CCMA or the bargaining council,
it
must be dealt with by the presiding arbitrator or commissioner, who
must make a ruling.
Ordinarily,
the CCMA and bargaining councils make rulings on jurisdictional
points for the purpose of convenience and not because
the decision is
binding on the parties (see
SARPA v SA Rugby (Pty) Ltd: SA Rugby
(Pty) Ltd v SARPU
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC)). Both these
institutions are creatures of statute, and neither may grant itself
jurisdiction that it does not have, or deprive
itself of jurisdiction
that it enjoys by making a wrong finding that it lacks jurisdiction.
An aggrieved party may apply under
s 158 (1) (g) to review the
ruling. This court is then required to determine whether objectively
speaking, the facts that would
confer jurisdiction on the CCMA or the
bargaining council existed. The court does not, as it does under s
145, determine whether
the ruling was one to which a reasonable
decision-maker could have come. In other words, the Act establishes
this court as a supervisory
authority over the CCMA and bargaining
councils. The court is not empowered to make rulings on jurisdiction
as a court of first
instance in disputes which in terms of the Act
must be referred to arbitration by the CCMA or a bargaining council,
however convenient
that may be to the broader constituency of
municipal managers or the local authorities that employ them.
[5]
In short: it is not for a bargaining council arbitrator (nor a CCMA
commissioner, for that matter) to make a ruling that has
the effect
of requiring this court to make declaratory orders on jurisdiction
when the jurisdiction of the council (or the CCMA)
has been
challenged. The arbitrator must, if called on to do so, make a ruling
on jurisdiction. Any party aggrieved by the ruling
may seek to have
it reviewed and set aside. This court does not have the jurisdiction,
as a court of first instance, to decide
jurisdictional disputes
pending before arbitrators and commissioners. To the extent that the
applicant relies on this court’s
powers to grant declaratory
orders, the applicant confuses the concepts of jurisdiction on the
one hand and powers on the other.
Although certainty has an inherent
value, it cannot be sought at the cost of undermining the statutory
dispute resolution structure
and the status of this court as a
supervisory authority. Similarly, considerations of convenience to
the parties do not confer
jurisdiction on this court where none is
established by the Act. For this reason, the application must fail.
[6]
In any event, this court ought ordinarily to refuse to grant
declaratory orders when a party approaches the court to obtain
a
declaration of rights merely because those rights have been disputed.
The court is not here to advise on the merit of differing
contentions
in these circumstances, however important these may be to the
parties, or however convenient it may be to them
that the court makes
an order upholding one of the positions contended for (see
Gibb
v Nedcor Limited
[1997]
12 BLLR 1580
(LC), at 1598).
For
these reasons, I make the following order:
1.
The application is dismissed.
2.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application 30 November 2010
Date
of judgment 6 December 2010
Appearances:
For
the applicant: Adv P. Kantor instructed by Craig Schneider
Associates, Attorneys.